What is empirical research on law?

In this introduction to their guide to research ethics Mark Israel and Iain Hay (Flinders University, Australia) develop a definition of empirical research on law.

Most academic researchers are concerned about ethics. We like to believe we behave in ways that are right and virtuous – for the sake of those who put trust in us and our work, for those who employ us, fund our research, and otherwise support our professional activities, and as a result of our own desires to do good. Less charitably, we may also be motivated to behave ethically by desires to avoid public censure.

Unfortunately, many find that it is more difficult to act ethically than it should be. Why? Often, researchers in our field do not have the philosophical training to negotiate sometimes difficult ethical terrain. We do not always recognise ethical challenges when they appear, nor do we necessarily have the time to make the best decisions. In other work, we have argued that empirical researchers need to extend their capacity to think seriously and systematically about what constitutes ethical conduct. Researchers also need to develop better understandings of the politics and contexts within which ethics are regulated, wherever they find themselves working (Israel & Hay, 2006).

Defining empirical research on law

Empirical research helps us understand how the law works in the real world – the impact that law, legal institutions, legal personnel and associated phenomena have on people, communities and societies, as well as the influence that various social, economic and political factors have on law, legal phenomena and institutions. These are critical issues: “…we need to know how law or legal decision making or legal enforcement really works outside the statute or text book” (Richardson 2006, piii).

Empirical work on law draws on a range of social research methodologies, and can be found within academic groupings such as socio-legal studies, law in context, law and society, empirical legal studies, criminology and criminal justice, as well as within more mainstream departments in law and the social sciences. In some countries such empirical scholarship is booming. However, although British doctrinal law scholars now engage in socio-legal research (Cownie, 2004), in the UK a mixture of lack of capacity, poor ability to develop the appropriate skills among future researchers, limited resources and distrust of interdisciplinary research have restricted the growth of empirical research on law:

There has been a huge rise in the amount of research being done in university law schools over the last decade. However, notwithstanding the variety of research methods now being used, most of that research remains text-based in its nature. Large scale empirical projects call for both a very different set of skills and a different knowledge base to that that most academics will have acquired through an undergraduate course in law.

— Flood et al, 2004

These matters have recently been considered in a report, Law in the real world, funded by the Nuffield Foundation (Genn et al, 2006). The authors, three senior British socio-legal scholars, were concerned that “…while law is an increasingly important feature of modern life, there seems to a decreasing capacity to keep it under empirical examination” (p 2).

At the same time, the extension and intensification of governance structures to matters relating to responsible conduct of research – both research ethics and research integrity – dubbed ‘ethics creep’ (Haggerty, 2004) have curbed the enthusiasm of social scientists for empirical research in several countries. The purpose of this resource is to:

• generate interest in teaching students how to grapple with both ethical conduct and regulatory compliance
• develop skills in handling research ethics matters among a new generation of socio-legal scholars
• ensure that unnecessary hurdles are not placed in front of empirical researchers in law

Last Modified: 4 June 2010